REPRINTED  FROM 


The  American 


olitical  Science  Review 


It  ’ 


BOARD  OF  EDITORS 


Henry  Jones  Ford,  Princeton  University 
W.  F.  Dodd,  University  of  Illinois 
W.  B.  Miinro,  Harvard  University 
A.  R.  Hatton,  Western  Reserve  University 


Jesse  Reeves,  University  of  Michigan 
Paul  S.  Reinsch,  University  of  Wisconsin 
Benjamin  F.  Shambaugh,  University  of  Iowa 
Eugene  Wambangh,  Harvard  University  Law  School 


W.  W.  Willoughby,  Managing  Editor,  Johns  Hopkins  University,  Baltimore,  Md. 


Vol.  VI 


MAY,  1912 


CONTENTS 


No.  2 


pi' 

J'.il;!:!  i!  S‘  . 

iiidii. 
iiiipdliill 
iliii* 


Govermnental  Regulation  of  Insurance  in  Canada 

Avard  L.  Bishop  . .  175 

The  Parliament  Act  of  1911 . . .  .A.  L.  P.  Dennis. . . .  194 

The  New  Role  of  the  Governor . . . J.  M.  Mathews. . 216 

Notes  on  Current  Legislation . . . Horace  E.  Flack. . . 229 

British  National  Insturance  Act;  Civil  Service;  Legislative  Investigations;  Reports  of  Occupa¬ 
tional  Diseases  and  Accidents;  State  Fire  Prevention. 

News  and  Notes: 

Personal  and  Bibliographical . .  — W.  F.  Dodd. _ _  _ ....  245 

Wfeconsin  State  Board  of  Public  Affairs . . . . .  266 

Book  Reviews . . . . 268 


^  Recent  Government  Publications  of  Political 

Interest . Carl  Hookstadt. 


320 


Index  to  Recent  Literature,  Books  and  Periodicals .  . 335 


(For  list  of  Book  Reviews,  see  second  page  of  cover) 


Published  Quarterly  by  The  American  Political  Science  Association 


Entered  at  the  Post  Office,  Concord,  N.  H.,  as  second-class  matter,  under  the  Act  of  July  z6, 1894. 


REVIEW  OF  BOOKS 


Ross — The  Changing  Chinese.  A.  B.  Hart . . .  268 

Reinsch — Intellectual  and  Political  Currents  in  the  Far  East. 

A.  B.  Hart . 268 

Goodnow — Social  Reform  and  the  Constitution.  E.  S.  Corwin . . .  270 

King — History  of  the  Government  of  Denver.  Frank  A. 

Updyke . 276 

Ilbert — Parliament.  Thomas  F.  Moran . 278 

Reinsch — Public  International  Unions.  C.  D.  Allin .  278 

Marriott — English  Political  Institutions.  George  H.  Haynes ....  281 

Fite — The  Presidential  Campaign  of  1860 . . .  282 

Hill— World  Organization  as  Affected  by  the  Nature  of  the 

Modern  State.  Francis  W.  Coker . . . .  284 

Jellinek — Ausgewahlte  Schriften  und  Reden.  Ernst  Freund. ...  286 

Chadwick — Relations  of  the  United  States  and  Spain.  J.  H. 

Latan4 . 288 

Hart — The  Obvious  Orient.  Edward  A.  Ross . .  291 

Morse — The  International  Relations  of  the  Chinese  Empire. 

Jesse  S.  Reeves . . 291 

Hackett — Reminiscences  of  the  Geneva  Tribunal  of  Arbitration. 

Jesse  S.  Reeves . . . . . . .  293 

Hammond — The  Village  Laborer,  1760-1832.  Edward  Porritt  294 
Hang — The  Commercial  Code  of  Japan.  Arthur  K.  Kuhn ......  297 

Dasent — The  Speakers  of  the  House  of  Commons.  Edward 

Porritt . 299 

Wilcox — Municipal  Franchises.  W.  F.  Willoughby .  301 

Leu'pp — The  Indian  and  His  Problem.  Karl  F.  Geiser .  304 

Learning — A  Philadelphia  Lawyer  in  the  London  Courts .  306 

McCall — The  Business  of  Congress . . .  307 

Hauriou — Precis  de  droit  administratif  et  de  droit  public.  7th  ed. 

J.  W.  Garner .  309 

Childs — Short  Ballot  Principles.  Arthur  Ludington.  . .  310 

Patterson — The  Constitutions  of  Ohio.  T.  L.  Sidlo .  315 

Schuster — ^The  German  Commercial  Code.  E.  M.  B . . .  316 

Reed — The  Territorial  Basis  of  Government  under  the  State 

Constitutions.  J.  M.  Mathews . 317 

Perkins — France  and  the  American  Revolution.  C.  W.  Alvord.  318 

Schroeder — Obscene  Literature  and  Constitutional  Law.  I. 

Maurice  Wormser.  .  . . 319 


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Copyright,  1912,  by  The  American  Political  Science  Association. 


I 

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THE  NEW  ROLE  OF  THE  GOVERNOR. 

JOHN  M;'  MATHEWS 

«  •  • 

University  of  Illinois 

About  twenty  years  ago,  Mr.  Bryce,  with  microscopic  vision, 
observed  that  the  state  governor  was  ^^not  yet  a  nonentity.’ 
On  the  other  hand  the  state  legislature  was  ^^so  much  the  strong¬ 
est  force  in  the  several  states  that  we  may  almost  call  it  the 
Government  and  ignore  all  other  authorities. The  strange¬ 
ness  of  sound  with  which  these  statements  strike  our  ears  at 
the  present  day  is  indicative  of  the  length  of  the  road  which  we 
have  since  traveled  and  of  the  change  which  has  taken  place 
within  recent  years  in  the  relative  positions  of  the  governor  and 
the  legislature  in  our  state  governments.  The  unmistakable 
tendency  which  now  prevails  in  many  quarters  towards  an 
enlargement  of  the  power  of  the  governor  directs  attention 
anew  to  the  administrative  and  political  position  which  that 
officer  occupies  and  to  the  manner  in  which  his  influence  and 
prestige  have  been,  and  may  be  still  further,  increased. 

The  administrative  position  of  the  governor  has  been  unsat¬ 
isfactory  since  the  original  organization  of  the  state  governments. 
The  first  state  constitutions  were  largely  adaptations  of  the 
colonial  charters  to  new  conditions  and  were  framed  in  the  light 
of  colonial  experience.  The  conflicts  that  had  taken  place 
between  the  colonial  governors,  appointed  by  the  crown,  and 
the  colonial  legislatures,  composed  of  representatives  of  the 
people,  had  embittered  the  colonists  against  the  exercise  of 
executive  authority.  Hence,  in  the  new  state  constitutions, 
the  predominant  legal  position  was  assigned  to  the  legislature, 
which  was  made  the  controlling  and  regulating  force  in  the 
state  governments,  while  the  executive  was  rendered  weak  and 
inefficient  both  in  organization  and  function.  As  Madison 

1  American  Commonwealth,  3rd  ed.,  vol.  I,  p.  532.  » Ihid.,  p.  534. 


THE  NEW  ROLE  OF  THE  GOVERNOR 


217 


1 


o* 

ox 


i 


succinctly  expressed  it  in  the  Convention  of  1787,  ^^The  execu¬ 
tives  of  the  states  are  in  general  little  more  than  ciphers;  the 
legislatures  omnipotent/’^  In  no  state  was  the  governor  given 
an  independent  power  of  appointing  the  administrative  officers 
of  the  commonwealth,  but  this  power  was  largely  vested  in  the 
legislature,  and  in  the  majority  of  states,  even  the  governor 
himself  was  appointed  by  the  legislature. 

The  reaction  towards  democracy  which  swept  over  the  country 
during  the  early  part  of  the  last  century  served  to  curtail  the 
power  of  appointment  both  of  the  legislature  and  of  the  governor 
and  to  lodge  it  nominally  in  the  people  but  really  in  the  party 
managers,  where  it  has  since  remained.  In  the  constitutions 
adopted  by  the  new  states  admitted  during  this  period  and  in 
the  revisions  effected  by  the  old  ones,  the  chief  administrative 
officers  of  the  state  are,  in  nearly  all  cases,  made  elective  by 
the  people  and  thus  independent  of  each  other  and  of  the  gov¬ 
ernor.  Even  in  those  cases  in  which  the  governor  retained  a 
limited  power  of  appointment,  no  power  of  removal  was  allowed 
him  s^jJffcient  to  create  any  practical  control  over  administra¬ 
tion.  In  the  leading  case  of  Field  v.  People,"^  decided  in  1840, 
the  Supreme  Court  of  Illinois  declared  unwarranted  the  attempt 
of  the  governor  to  remove  his  secretary  of  state  from  office,  on 
the  ground  that  the  general  grant  of  executive  power  by  the 
Constitution  to  the  governor  did  not  include  the  power  of 
removal,  and  that  he  could  exercise  no  power  not  expressly 
granted  to  him  in  the  Constitution  or  laws.  In  1873  a  further 
illustration  of  the  impotence  of  the  governor  in  respect  to  re¬ 
moval  was  afforded  in  New  Jersey.  The  police  commissioners 
of  Jersey  City,  who  were  state  officers  and  charged  by  the  state 
with  the  enforcement  of  the  law^  in  that  city,  were  tried  and 
convicted  in  the  county  court  upon  indictment  for  conspiracy 
to  defraud  the  city  of  public  funds.  The  governor,  with  the 
laudable  intent  of  ridding  the  state  administration  of  officers 
whose  unfitness  had  thus  been  unequivocally  demonstrated, 
undertook  to  remove  them  from  office.  The  supreme  court  of 
the  state,  however,  held  that  the  right  to  remove  a  state  officer, 

» Elliot’s  Debates,  vol.  V,  p.  327.  « 3  Ill.,  79. 


218 


THE  AMERICAN  POLITICAL  SCIENCE  REVIEW 


even  for  proved  malfeasance  in  office  did  not  belong  to  the 
executive,  that  the  act  of  removal  was  judicial  in  character 
and  belonged  only  to  the  court  of  impeachment.^  The  result 
was  that,  until  the  cumbrous  machinery  of  impeachment  could 
be  brought  into  operation,  the  people  of  the  state  had  to 
endure  the  unedifying  spectacle  of  the  enforcement  of  the  law 
entrusted  to  men  who  not  only  ought  to  have  been,  but  were, 
convicts. 

The  governor’s  lack  of  the  power  of  removal  is  apt  also  to 
produce  a  serious  disharmony  in  administration  when,  as  not 
infrequently  happens,  important  administrative  officers  serve 
for  longer  terms  than  does  the  governor  himself,  and  may  also 
belong  to  the  opposite  political  party.  A  recently  elected  gov¬ 
ernor  was  much  embarrassed  to  find,  upon  his  election,  that 
his  attorney-general,  whom  he  could  not  remove,  would  hold 
office  for  a  longer  term  than  his  own,  and  had  presided  over 
the  party  convention  which  had  nominated  his  leading 
opponent  in  the  gubernatorial  campaign. 

The  manifest  incongruities  which  this  diffusion  of  executive 
power  produces  have  caused  a  slight  reaction  towards  allowing 
the  governor  a  larger  control  over  the  administrative  officers 
of  the  state.  This  has  been  effected  in  some  states  by  granting 
him,  either  constitutionally  or  by  statute,  a  greater  power  of 
appointment  and  removal,  and  also  the  power  to  require  infor¬ 
mation  from  executive  officers  as  to  the  working  of  their  depart¬ 
ments.  For  example,  by  the  Illinois  Constitution  of  1870,  the 
governor  was  given  the  power  ^To  remove  any  officer  whom  he 
may  appoint,  in  case  of  incompetency,  neglect  of  duty,  or  mal¬ 
feasance  in  office.”®  A  number  of  states  have  adopted  a  similar 
rule,  either  by  constitution  or  statute,  and  substantially  the 
same  provision  is  copied  into  the  constitution  of  New  Mexico. 
By  the  constitutions  of  thirty-two  states,  including  those 
recently  adopted  in  Alabama,  Oklahoma,  Michigan,  and  Ari¬ 
zona,  the  governor  is  empowered  to  require  information  in 

6  State  V.  Pritchard;  7  Vroom  (N.  J.  L.),  101. 

e  Thorpe,  Charters  and  Constitutions,  vol.  II,  p.  1025. 


THE  NEW  HOLE  OF  THE  GOVERNOR 


219 


writing  from  the  officers  of  the  executive  department  upon 
any  subject  relating  to  the  duties  of  their  respective  offices. 

The  slight  reform  which  has  thus  been  wrought  in  the  direc¬ 
tion  of  centralizing  the  control  of  state  administration  in  the 
hands  of  the  governor  has  not,  however,  assumed  sufficient 
dimensions  to  produce  any  great  change  in  his  administrative 
position  nor  to  place  in  his  hands  any  very  effective  control  over 
the  law-enforcing  officers  of  the  state.  The  result  has  been 
and  is  that  the  will  of  the  majority  of  the  people  of  the  state 
presumably  expressed  in  the  law  is  frequently  thwarted  and 
set  at  naught.  The  prevalent  non-enforcement  of  state  law 
is  largely  due  to  the  fact  that  the  diffusion  of  executive  power 
deprives  state-wide  public  opinion  of  any  adequate  facilities 
for  the  control  of  public  policy.  Adverse  local  sentiment  and 
the  malign  influence  of  ^ Apolitical  experts’’  cause  petty  executive 
officers  to  interpret  the  state  will  to  suit  their  own  purposes,  and 
in  many  instances  the  latter  actually  control  the  determination 
of  public  policy  within  the  range  of  their  official  activity  or 
possible  non-activity.  State  excise  and  other  laws  remain  unen¬ 
forced  because  upon  the  officers  charged  with  their  enforce¬ 
ment  there  rests  no  continuous  pressure  of  responsibility  to  the 
general  public,  capable  of  being  applied  by  the  governor.  State 
election  laws  will  doubtless  continue  to  be  violated  and  whole¬ 
sale  election  frauds  to  be  connived  at  under  a  system  in  which 
a  community  of  interest  exists  between  the  political  managers 
and  their  appointees,  the  sheriffs,  and  in  wffiich  the  latter  officers 
in  turn  practically  control  the  selection  of  the  grand  juries. 

Of  many  startling  examples  of  the  disregard  of  law  due  at 
least  in  part  to  the  disintegration  of  the  state  administrative 
system,  the  so-called  ^ Tobacco  war”  in  Kentucky  may  be  cited 
as  an  example. 

AAfn  December,  1905,  in  Todd  County,  in  the  circuit  court 
room,  packed  by  excited  men,  a  lawyer  declared  that  if  they 
(the  night  riders)  did  violate  the  law  they  ought  not  to  be  pun¬ 
ished,  and  would  not  be  prosecuted  while  he  was  Common¬ 
wealth’s  attorney,  and  the  very  next  night  one  tobacco  factory 
was  burned  and  another  set  on  fire,  and  the  following  Monday 


220 


THE  AMERICAN  POLITICAL  SCIENCE  REVIEW 


night  a  large  band  of  armed  and  masked  men  held  up  a  railroad 
train  and  searched  it  for  tobacco  and  dynamited  a  snuff  factory, 
and  although  the  circuit  court  was  in  session,  with  a  grand 
jury  empaneled,  no  one  was  indicted  or  punished.’^ ^ 

Local  officers  and  even  judges  were  in  sympathy  with  the 
night  riders,  and  it  is  significant  that  the  judges  and  state’s 
attorneys  were  elected  by  the  people  and  not  subject  to  removal 
or  correction  by  the  governor.  Those  who  bewail  the  prevalent 
disregard  of  law  and  attribute  all  lawlessness  to  the  pusillanim¬ 
ity  of  sheriffs,  state’s  attorneys  and  grand  juries  may  well 
consider  whether  this  condition  of  affairs  is  not  due  rather  to 
the  system  of  nominal  popular  election  of  local  executive  officers, 
.  who  are  thus  actually  placed  under  the  control  of  sinister  unof¬ 
ficial  influences,  and  to  the  consequent  lack  of  general  popular 
control  over  them  which  might  otherwise  be  exercised  through 
the  effective  administrative  supervision  of  the  governor. 

From  this  sketch  of  the  administrative  position  of  the  governor 
it  appears  evident  that  the  increase  in  the  power  and  prestige 
of  that  officer,  noted  at  the  beginning  of  this  paper,  arises  not 
at  all,  or  only  slightly,  from  an  increased  control  over  adminis¬ 
tration.  We  therefore  turn  to  inquire  what  influence  the  gov¬ 
ernor  exerts  over  legislation. 

In  the  first  state  constitutions,  as  has  been  pointed  out,  the 
legislature  was  given  a  position  completely  overshadowing  the 
other  departments  of  government.  Since  then,  however,  a 
popular  distrust  of  the  legislature  has  arisen  and  steadily  grown 
until  it  has  become  one  of  the  most  striking  political  phenomena 
of  the  present  day.  A  history  of  state  legislatures  would  be 
largely  concerned  with  the  successive  development  of  various 
methods  of  curtailing  the  almost  absolute  power  which  those 
bodies  originally  possessed.  Leaving  for  the  moment  out  of 
account  the  usurpation  of  legislative  power  by  the  so-called 
^ Third  house,”  we  may  say  that  this  general  movement  has 
manifested  itself  in  the  transfer  of  legislative  power  from  the 

1  Message  of  Governor  Willson  of  Kentucky  to  the  legislature  of  that  state,  Jan¬ 
uary,  1908,  quoted  in  Reports  of  American  Bar  Association,  vol.  XXXIV,  p.  416. 


THE  NEW  HOLE  OF  THE  GOVERNOR 


221 


legislatures  (a)  to  the  courts,  (b)  to  the  people,  and  (c)  to  the 
governor. 

The  transfer  of  legislative  power  to  the  courts  arose,  of  course, 
through  the  early  development  of  the  power  of  the  judiciary 
to  annul  unconstitutional  legislation.  The  more  recent  ten¬ 
dency  to  incorporate  ordinary  legislation  in  state  constitutions, 
to  prescribe  narrowly  in  those  instruments  the  powers  of  the 
legislatures  and  the  manner  in  which  they  may  be  exercised, 
and  to  define  minutely  the  organization  and  functions  of  various 
branches  of  the  government,  has  served  greatly  to  increase  the 
power  of  the  judicary  over  legislation. 

The  prevalent  distrust  of  the  legislature  further  manifests 
itself  in  the  adoption  of  the  popular  initiative  and  referendum 
as  applied,  not  to  matters  of  constitutional  revision  or  of  merely 
local  interest,  but  to  ordinary  legislation  of  state-wide  concern. 
These  ‘^newer  institutional  forms  of  democracy’’  appear  to 
give  a  greater  popular  control  over  legislation,  but  their  legiti¬ 
mate  application  is  confined  to  those  matters  upon  which  the 
people  are  capable  of  passing,  viz.,  simple  and  broad  questions 
of  public  policy.  It  may  be  noted,  in  passing,  that  provisions 
for  the  introduction  of  the  initiative  and  referendum  incidentally 
place  a  check  upon  the  legislative  power  of  the  governor  by 
forbidding  him  to  exercise  his  veto  in  regard  to  measures  referred 
to  the  people.^  It  would  seem  probable,  however,  that  in  so 
far  as  this  is  a  real  check  upon  ^ the  power  of  the  governor,  it 
will  not  prove  to  be  permanent.  On  the  whole,  the  initiative 
and  referendum  appear  to  be  passing  phenomena,  useful  perhaps 
in  an  emergency,  but  not  fitted  to  serve  as  a  steady  regimen. 
True  reform  towards  real  democratic  state  government  lies  not 
in  the  direction  of  these  popular  nostrums,  but  in  the  direction 
of  the  increasing  control  of  the  governor  over  the  state’s  legis¬ 
lative  product.  ^^The  true  initiative  of  the  people  is  not  a 
legal  initiative,  but  the  originating  and  stimulating  force  of 
articulate  public  opinion  operating  through  the  effective  instru¬ 
mentality  of  the  responsible  executive  head  of  the  state  gov- 

8  See,  for  example,  the  Constitution  of  Oklahoma,  Thorpe,  op.  cit.,  vol.  VII,  p. 
4278,  and  the  Constitution  of  Arizona,  art.  iv,  sect.  1. 


222 


THE  AMERICAN  POLITICAL  SCIENCE  REVIEW 


eminent.’^ ^  The  increasing  influence  of  the  governor  over 
legislation  is  the  comparatively  new  role  which  he  is  now  begin¬ 
ning  to  play,  and  which,  in  its  relation  to  popular  control  of 
government,  bids  fair  to  become  one  of  the  most  important 
developments  in  the  history  of  the  state  governments. 

Legally  speaking,  the  governor  has  exercised  from  the  begin¬ 
ning  a  certain  amount  of  control  over  legislation  by  means  of 
his  veto.  Conferred  but  grudgingly  at  first,  and  not  at  all 
except  in  two  states,  it  has  been  gradually  extended  until  now 
only  one  state  still  withholds  it.^®  At  the  same  time  the  size  of 
the  majority  required  to  overcome  the  veto  has  steadily  increased 
until  now  in  most  states  it  approximates  two  thirds.  Further¬ 
more  the  efficiency  of  the  veto  has  been  increased  through  the 
power  now  granted  the  governor  in  more  than  thirty  states  to 
veto  separate  items  of  appropriation  bills,  and  in  three  states 
this  privilege  has  even  been  made  to  apply  to  any  bill.^^  In 
all  these  cases,  of  course,  the  governor’s  veto  is  a  qualified  one 
only,  but  it  may  become  absolute  with  regard  to  legislation 
passed  shortly  before  the  adjournment  of  the  session.  Mention 
may  also  be  made  in  this  connection  of  the  lengthening  of  the 
governor’s  term  of  office,  and  of  the  partial  abandonment  of 
the  provision  which  renders  him  ineligible  to  succeed  himself. 
It  thus  appears  that  the  tendency  of  constitutional  development 
has  been  towards  increasing  the  legal  power  of  the  governor 
over  the  course  of  legislation.  But  this  tendency  has  not  yet 
advanced  far  enough  to  give  the  governor  any  very  real  and 
effective  control  over  the  shaping  of  legislative  policy.  The 
veto  power  is  evidence  in  the  law  of  the  general  recognition  of 
the  desirability  of  granting  to  the  governor  some  share  in  the 
formulation  of  the  will  of  the  state  as  embodied  in  legislation. 
But  in  spite  of  the  legal  sanction  of  this  principle,  the  veto  power 
is  illogical  and  insufficient  in  that  it  carries  only  one  side  of 
that  principle  into  practical  effect.  The  plain  fact  is  that  the 

»  The  New  Stateism,  by  the  present  writer,  in  the  North  American  Review  for  June, 
1911. 

loDealey,  Our  State  Constitutions,  p.  31. 

Ibid,  p.  32. 


THE  NEW  ROLE  OF  THE  GOVERNOR 


223 


governor  is  held  responsible  for  controlling  the  course  of  legisla¬ 
tion,  but  is  not  given  the  legal  power  commensurate  with^ 
that  responsibility.  He  can  sometimes  block  •  vicious  legisla¬ 
tion,  ^^jokers,’’  ^hiders,’^  and  ‘^jobs,’’  but  he  has  legally  no 
correlative  power  of  initiating  and  pushing  through  legislation 
which  is  demanded  by  intelligent  public  opinion.  Unless  the 
governor  is  given  both  these  powers  he  ought  not  rightfully 
to  be  held  responsible  for  the  course  that  legislation  takes. 
But  whether  rightfully  or  not  the  people  are  holding  him  respon¬ 
sible  because  he  alone  stands  out  conspicuously  among  state 
officers.  In  the  hydra-headed  legislative  body  no  strikingly 
prominent  figure  can  be  found,  upon  whom  responsibility  can 
be  saddled.  The  course  of  legislative  procedure  is  so  confused, 
and  desirable  legislation  may  be  emasculated,  smothered,  and 
killed  in  so  many  different  ways  in  the  scuffle  and  scramble  of 
legislation  that  the  people  find  it  impossible  to  fix  the  blame 
within  the  legislature.  As  has  been  so  often  observed,  the 
actual  process  of  legislation  has  deserted  the  legislative  cham¬ 
bers,  and  now  takes  place  behind  the  closed  doors  of  committee 
rooms.  And  even  if  the  progress  of  the  public  business  within 
the  committee  rooms  were  entirely  open  to  the  public  view,  the 
people  would  doubtless  still  be  confused  by  the  multiplicity  of 
committees,  each  responsible  for  only  a  comparatively  small 
part  of  the  whole  field  of  legislation.  Since  no  one  looms  up  in 
the  legislature  that  can  be  held  responsible,  the  governor,  who 
stands  off  exasperatingly  powerless,  is  made  the  scapegoat. 
The  deplorable  morass  into  which  the  state  business  thus  falls 
has  led  some  publicists  to  advocate  the  entire  abolition  of  the 
legislature. Others,  such  as  Mr.  U’Ren,^^  Mr.  Croly,^^  and 
Mr.  White, disgusted  by  the  results  of  the  present  great 
diffusion  or  responsibility  both  in  administration  and  in  legis- 

12  Cf.  Dealey,  op.  cit.,  p.  9. 

13  Bill  for  a  Law  and  Suggested  Amendments  to  the  Constitution  of  Oregon, 
pamphlet,  Portland,  Oregon,  August  14,  1909. 

i<  The  Promise  of  American  Life,  chap.  XI. 

1*  PoHtical  Science  Quarterly,  vol.  XVIII,  p.  655. 


224 


THE  AMERICAN  POLITICAL  SCIENCE  REVIEW 


lation,  advocate  a  thoroughgoing  reorganization  of  the  state 
governments  upon  entirely  new  linesd® 

Meanwhile,  however,  a  development  is  taking  place  and 
being  gradually  wrought  out  before  our  eyes  which  may  render 
any  radical  reconstruction  of  the  state  governments  along  legal 
lines  not  only  unnecessary  but  undesirable.  “The  whole  coun¬ 
try,’’  says  Governor  Wilson  of  New  Jersey,  “since  it  cannot 
decipher  the  methods  of  its  legislation,  is  clamoring  for  leader¬ 
ship,  and  a  new  role,  which  to  many  persons  seems  little  less 
than  unconstitutional,  is  thrust  upon  our  executives.  The 
people  are  impatient  of  a  President  who  will  not  formulate 
policy  and  insist  upon  its  adoption.  They  are  impatient  of  a 
governor  who  will  not  exercise  energetic  leadership,  who  will 
not  make  his  appeals  directly  to  public  opinion  and  insist  that 
the  dictates  of  public  opinion  be  carried  out  in  definite  legal 
reforms  of  his  own  suggestion. Some  of  the  subtle,  extra- 
legal,  and  largely  unforeseen  influences  which  have  raised  the 
President  to  the  predominant  position  which  he  occupies  in 
the  National  Government  are  now,  in  spite  of  the  greater  legal 
difficulties  in  the  way,  beginning  similarly  to  affect  the  position 
of  the  governor.  By  the  gradual  accretion  of  precedent,  and 
by  the  growth  of  custom,  the  governor  is  forging  the  instrument 
of  control  over  both  the  initiation  and  the  passage  of  legislation. 
This  extra-legal  instrument  is  the  personal  influence  of  the 
governor,  supported  by  the  full  force  of  “pitiless  publicity” 
and  public  discussion.  This  is  a  much  broader  power  than 
that  which  is  usually  associated  with  the  right  of  sending  mes¬ 
sages  to  the  legislature.  It  is  true,  as  has  been  recently  pointed 
out,^^  the  message  power  has  not  been  used  by  governors  to 
the  extent  which  the  language  of  the  state  constitutions  would 
warrant.  They  “give  him  the  right  to  recommend  measures 
and  do  not  limit  him  in  respect  to  the  form  in  which  he  shall 

16  These  plans  are  summarized  in  Beard,  American  Government  and  Politics,  pp. 
504-6. 

Address  before  the  Commercial  Club  of  Portland,  Oregon,  May  18,  1911. 

13  Address  of  Governor  Woodrow  Wilson  of  New  Jersey  before  the  House  of  Gov¬ 
ernors,  Frankfort,  Kentucky,  November  29,  1910. 


THE  NEW  ROLE  OF  THE  GOVERNOR 


225 


make  his  recommendations.  He  can  make  them  in  the  form 
of  bills  if  he  pleases.”^®  But,  as  Mr.  Henry  L.  Stimson  has 
remarked,  ^^the  executive  ought  not  to  be  forced  to  resort  to 
innovating  constructions.  The  course  of  co-operation  between 
governor  and  legislature  ought  to  be  made  easy  and  natural, 
instead  of  forced  and  difficult. Xo  obviate  this  difficulty  a 
method  of  procedure  has  already  been  devised  through  the 
introduction  in  state  legislatures  of  so-called  ^^administration 
bills,’’  which  are  nominally  fathered  by  some  member  of  the 
legislature  but  which  really  emanate  from  the  governor.  But 
in  securing  the  passage  of  such  bills  after  their  introduction  the 
personal  influence  of  the  governor  comes  into  play.  Already 
in  some  states  we  find  the  governor  appearing  before  informal 
meetings  of  legislative  committees,  discussing  with  them  ques¬ 
tions  of  public  policy,  and  advocating  the  measures  that 
public  opinion  demands.  The  personal  influence  of  the  gov¬ 
ernor  is  not  the  influence  of  coercion  or  the  selling  of  appoint¬ 
ments  for  favorable  votes  on  administration  bills.  Such  tactics 
sooner  or  later  undermine  the  influence  of  the  executive. 
But  the  real  influence  of  the  governor  over  the  legislature,  as 
Governor  Wilson  has  pointed  out,  consists  in  his  power  to  repre¬ 
sent,  to  persuade,  and  to  lead  the  people.^^  If  by  his  qualities 
of  leadership  and  the  force  of  his  arguments,  he  can  persuade 
the  people  during  the  campaign,  the  same  qualities  will  give 
him  such  a  personal  ascendancy  over  the  legislature  after  his 
election  that  he  will  be  able  to  lead  that  body  also.^^  The 

Ihid. 

20  Address  delivered  at  the  McKinley  Day  Banquet  of  the  Tippecanoe  Club  of 
Cleveland,  Ohio,  January  28,  1911,  pamphlet,  p.  13. 

21  In  the  Frankfort  address. 

22  A  step  has  been  taken  in  New  Jersey  towards  granting  the  governor  or  candidate 
for  governor  in  each  party  a  greater  influence  over  the  formulation  of  the  public 
policy  which,  as  governor,  he  may  have  to  carry  into  effect.  By  a  recent  enactment 
of  that  state  it  is  provided  that  a  state  convention  of  each  party  shall  be  held  annually 
for  the  purpose  of  adopting  and  promulgating  a  party  platform,  which  convention 
shall  be  composed  of  the  party  candidates  who  have  been  nominated  at  the  party 
primaries  for  the  office  of  member  of  the  Assembly  or  State  Senator,  together  with 
hold-over  Senators,  members  of  the  State  Committee,  and  “the  candidate  of  the 
party  for  Governor  nominated  at  the  said  primaries  in  the  year  in  which  a  Governor 


226 


THE  AMERICAN  POLITICAL  SCIENCE  REVIEW 


legislature  must  be  led  by  some  person  or  persons.  It  cannot 
pass  upon  all  measures  that  come  before  it  without  guidance 
from  some  source.  Legislative  policies  do  not,  as  a  rule,  origi¬ 
nate  in  the  legislature  itself.  They  usually  emanate  from  out¬ 
side  sources,  sometimes  legitimate  but  too  often  illegitimate. 
The  bosses  have  too  frequently  dictated  the  passage  or  the 
sidetracking  of  measures.  ^Tn  his  new  role  the  governor 
becomes  the  virtual  boss  and  shapes  the  course  of  legislation  for 
the  general  benefit,  instead  of  for  private  and  special  interests. 
There  is  little  danger  in  such  bossism,  for  the  governor  can  be 
held  accountable  by  the  people,  while  the  unofficial  boss  cannot. 
This  does  not  imply  that  the  governor  is  in  continual  conflict 
with  the  legislature  and  wields  the  big  stick  of  his  personal  influ¬ 
ence  over  them.  On  the  contrary,  he  works,  as  far  as  possible, 
in  entire  harmony  and  co-operation  with  them.  Co-ordination, 
not  separation,  is  the  proper  relation  between  the  executive 
and  legislative  departments  which  the  governor  endeavors  to 
foster.  But,  in  the  case  of  a  recalcitrant  legislature,  the  gover¬ 
nor's  power  of  appealing  directly  to  the  people  always  remains 
in  reserve,  though  its  existence  would  usually  render  its  exercise 
unnecessary.  .  .  .  For,  no  matter  how  jealous  a  legislature 

may  be  of  its  own  prerogatives,  no  matter  how  incapable  it 
may  be  of  being  bulldozed,  wheedled,  or  cajoled  by  threats  or 
intimidation  on  the  part  of  the  governor,  it  cannot  withstand 
the  force  of  pitiless  publicity  wielded  by  a  vigorous,  independent, 
and  courageous  governor,  supported  by  the  pressure  of  intelli¬ 
gent  and  aroused  public  opinion.  And  it  is  the  function  of  the 
governor  to  keep  it  aroused  by  a  continuous  and  relentless 
application  of  repeated  doses  of  publicity  throughout  the  whole 

course  of  legislation. ^^^3 

The  open  leadership  of  an  able,  responsible,  and  fearless 
governor  is  thus  becoming  an  effective  instrumentality  for  the 


is  elected,  and  in  each  year  in  which  no  Governor  is  elected,  the  Governor  of  the 
State  shall  be  a  member  of  the  convention  of  the  pohtical  party  to  which  he  belongs.’’ 
New  Jersey  Session  Laws  of  1911,  Chap.  183,  p.  276. 

This  passage  is  quoted  from  an  article  by  the  present  writer  on  The  New  Stateism 
in  the  North  American  Review,  June,  1911. 


THE  NEW  HOLE  OF  THE  GOVERNOR 


227 


control  of  public  policy  by  public  opinion.  Only  men  of  unusual 
ability  are  capable  of  playing  this  new  role  of  the  governor,  but 
the  opportunity  which  thus  presents  itself  for  the  display  of 
statesmanlike  qualities  will  induce  a  much  abler  type  of  man  to 
become  a  candidate  for  the  office  than  has  hitherto  been  the 
case.  A  ^^House  of  Governors,’’  if  composed  of  a  number  of 
such  able  and  independent  leaders,  will,  though  entirely  extra- 
legal  in  character,  become  one  of  the  most  influential  bodies 
in  the  country  in  shaping  the  course  of  general  state  legislation. 

The  significance  of  the  increasing  influence  of  the  governor 
lies  in  the  fact  that  through  him  the  people  have  found  a  means 
of  controlling  the  formulation  of  public  policy.  The  concentra¬ 
tion  of  large  power  in  the  hands  of  a  single  responsible  officer  no 
longer  excites  fear  of  tyranny,  but  is  seen  to  be  a  step  towards 
true  democracy.  Government  becomes,  if  not  by  the  people, 
at  least  for  the  people. 

The  natural  desire  of  the  people  for  leadership  has  hitherto 
found  its  manifestation  largely  in  boss-rule.  The  power  of 
the  boss  has  been  due  to  the  fact  that  he  has  performed  two 
functions  which  must  of  necessity  be  assumed  by  some  one. 
These  are  the  dictation  of  legislation,  and  the  appointment  of 
^nominally  elective  officers.  In  other  words,  he  has  controlled 
both  legislation  and  administration.  Since  the  bodies  empow¬ 
ered  by  law  to  perform  these  functions  are  not  fitted  to  do  so, 
the  functions  must  of  necessity  be  either  usurped  by  some  organ¬ 
ization  outside  the  governmental  system,  such  as  the  political 
machine,  or  else  transferred  to  some  other  body  within  the 
government  better  qualified  for  their  proper  discharge.  Hith¬ 
erto  the  former  alternative  has  been  very  largely  followed,  but 
more  recently,  as  has  been  shown,  perceptible  progress  has  been 
made  towards  transferring  the  control  of  legislation  from  the 
unofficial  boss  to  the  governor.  Even,  however,  should  the 
boss  be  completely  ousted  from  the  control  of  legislation,  he  • 
can  still  take  refuge  behind  the  breastworks  of  the  long  ballot. 
Hence,  in  order  that  the  power  of  the  governor  may  be  fully 
commensurate  with  his  responsibility,  it  will  be  necessary  that 
the  number  of  elective  state  officers  be  reduced  and  greater 


228 


THE  AMERICAN  POLITICAL  SCIENCE  REVIEW 


power  of  appointment  and  removal  vested  in  the  governor. 
In  bringing  about  this  much-needed  reform,  the  newly  acquired 
influence  of  the  governor  over  legislation  is  likely  to  be  a  potent 
factor.  The  greater  co-ordination  which  the  governor  in  his 
new  role  effects  between  himself  and  the  legislature  tends  to 
establish  those  governmental  and  political  conditions  which 
will  be  conducive  to  the  adoption  of  the  short  ballot.  As  soon 
as  the  people  become  fully  aware  of  the  far-reaching  evils  arising 
from  the  present  disintegrated  administrative  system  in  the 
states,  they  will  be  assisted  in  finding  a  remedy  by  the  possi¬ 
bility  of  greater  control  over  the  state  business  which  the  new 
position  of  the  governor  places  in  their  hands. 


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